The controversial film Planet of the Humans, produced by Michael Moore, was taken down from YouTube on Monday because of a copyright infringement claim. The complaint was filed by photographer Toby Smith, who was alarmed that his work was used in a film that he doesn’t support, The Guardian reports.
“I don’t agree with its message and I don’t like the misleading use of facts in its narrative,” Smith said to The Guardian. A few seconds of Smith’s video, Rare Earthenware, were used in Moore’s film, which criticizes renewable energy.
In a statement to The Verge, director Jeff Gibbs denied any copyright violation in his film, which garnered more than 8 million views on YouTube. “This attempt to take down our film and prevent the public from seeing it is a blatant act of censorship by political critics of Planet of the Humans,” Gibbs wrote. “It is a misuse of copyright law to shutdown a film that has opened a serious conversation about how parts of the environmental movement have gotten into bed with Wall Street.”
Although sources of archival footage are credited at the end of Gibbs’ film, makers of Rare Earthenware say it doesn’t constitute fair use because “the footage has been contorted to represent a pretty un-researched and for that reason rather dangerous narrative.”
The footage depicts the Shiguai coal mine in Inner Mongolia, China, and it’s used in a montage about how solar panels and wind turbines are made. In the context of the film, it seems to be used more as stock footage than an active commentary on Rare Earthenware, which could undermine Planet of the Humans’ case for fair use.
“The longer it stays offline, the better for the amazing work that the environmental movement has been doing in the last 10 years,” says Liam Young, who co-founded the studio that collaborated with Smith on Rare Earthenware. Young and Smith’s film traces the materials used in electronics back to their sources.
Planet of the Humans has gotten some support from PEN America, a group that advocates for free speech. “Those who take issue with the film have every right to make their concerns and arguments heard,” PEN America senior director Summer Lopez said in an April 29th statement. “But first and foremost, the public also has the essential right to view Moore’s film and make their own judgements.”
A firestorm of criticism from influential environmental advocates followed the release of Planet of the Humans in April. Among other things, the film makes the dubious claim that solar and wind power are potentially as harmful to the environment as fossil fuels and that environmentalists are essentially in the pockets of renewable energy corporations. Those claims have been torn apart by environmentalists and scientists who say that the film’s assertions are misleading.
“There is no perfect solution to our energy challenges. But this film does not grapple with these thorny questions; it peddles falsehoods,” Leah Stokes, UC Santa Barbara assistant professor and author of the book on clean energy Short Circuiting Policy, wrote for Vox.
“The weirdly misleading nature of this thing totally explains why it’s on YouTube, nor hosted by Netflix or Hulu or Amazon, or shown in theaters, or released in partnership with a credible news organization,” climate journalist Emily Atkin wrote in her newsletter Heated on April 27th. “YouTube, after all, is a platform that’s been shown to profit off the spread of climate misinformation.”
Stokes called the film “a gift to Big Oil.” It has gotten rave reviews from climate change skeptics like the oil-funded Heartland Institute, which yesterday posted a blog to its website that called Planet of the Humans “an entertaining and educational primer on the hype, phoniness, and lies behind green energy projects.”
The film has already sown distrust within environmental circles. “I have no doubt that many of the people who’ve seen the film are, at the least, disheartened … My work will be at least somewhat compromised and less effective,” Bill McKibben, one of the environmentalists called out in Moore and Gibbs’ film and a founder of the green group 350.org, wrote in Rolling Stone.
Planet of the Humans was also taken down from another platform, Films for Action, because of the copyright claim. Films for Action had previously temporarily removed it following a harsh letter from filmmaker Josh Fox and notable scientists and environmental activists. The full film is still up on Gibbs’ Vimeo account.
Social media bias lawsuits keep failing in court
Social media sites can legally ban users for nearly any reason. They can ban users for off-color jokes. They can ban users for being white supremacists. They can ban users for totally arbitrary and inscrutable reasons. If you sue over a Twitter or Facebook ban, you will almost certainly lose. Despite this, people keep filing lawsuits claiming they’ve been censored on social media — and today, courts handed down another defeat.
An appeals court in Washington, DC just rejected a complaint by Laura Loomer, the conservative activist who was banned from Twitter for anti-Muslim tweets and later chained herself to the company’s headquarters in protest. Loomer argued that Facebook, Google, Twitter, and Apple had all colluded to suppress conservative content, violating Loomer’s First Amendment rights in the process. The court disagreed and threw out the suit.
It’s convenient timing, given that President Donald Trump has spent the past day excoriating Twitter for its alleged bias. Trump threatened Twitter after it applied a fact-checking label to his tweets, threatening some kind of unknown action to “strongly regulate” or close down sites that “silence conservatives’ voices.”
Anti-bias lawsuits — where people argue Twitter, Google, or Facebook are discriminating against them for political reasons and legally obligated to carry their speech — offer an illuminating look at why Trump’s boldest threats are probably bluster. Courts across the country have repeatedly defended social networks’ rights to ban at will. If Trump wanted to shut down sites that went against his wishes, he’d need to basically upend this precedent.
So let’s look at the cases.
Charles C. Johnson v. Twitter
Conservative blogger and activist Charles C. Johnson has been embroiled in multiple lawsuits, one of which accused Twitter of violating his free speech rights when it banned him in 2015. In mid-2018, a California court granted Twitter’s request to dismiss the complaint, finding that the rights at stake were Twitter’s, not Johnson’s. “It is well established that the constitutional right to free speech includes the right not to speak,” read its ruling. Twitter’s rules “clearly state that users may not post threatening tweets, and also that [Twitter] may unilaterally, for any reason, terminate a user’s account. The rules reflect [Twitter’s] exercise of free speech.”
Jared Taylor v. Twitter
Fringe far-right figure Jared Taylor, a white nationalist, sued Twitter for banning him in 2018 — claiming he’d been discriminated against because of his racist viewpoints. California judge Harold Kahn gave Taylor a surprising legal win when he allowed the case to proceed, calling it a “classic public interest lawsuit.” But Taylor’s luck didn’t last. As legal expert Eric Goldman discusses here, a California appeals court said the exact logic of Taylor’s suit didn’t matter. Twitter’s moderation choices were protected under Section 230 of the Communications Decency Act.
Craig Brittain v. Twitter
“Revenge porn mogul” Craig Brittain, who ran for an Arizona Senate seat in 2018, was also angry at Twitter for banning him. Brittain hit Twitter with a laundry list of claims, alleging everything from First Amendment violations to infliction of emotional distress. A California court found that Brittain’s claims hinged on treating Twitter as a publisher of his content and Section 230 clearly contradicted these claims.
Federal Agency of News v. Facebook
One unusual political lawsuit came from the Federal Agency of News (FAN), which was allegedly tied to the Russian Internet Research Agency “troll farm.” Facebook removed FAN’s page along with a lot of other propaganda in 2016. FAN then sued Facebook for First Amendment violations and breach of contract. Judge Lucy Koh slapped down the case once in 2019 and again in early 2020, following much of the reasoning described above. Although, as Goldman’s blog details, FAN had some particularly weird misconceptions about internet law, including the idea that Section 230 had an exception for political speech. For the record, it doesn’t.
Prager University v. Google
Conservative advocacy group Prager University filed one of the best-known bias suits against Google in 2017, alleging that YouTube had unfairly restricted access to some of its videos. Like Loomer, PragerU accused Google of violating the First Amendment. Among other claims, it also said Google had violated the Lanham Act with false advertising.
Neither of these arguments worked. California federal judge Lucy Koh dismissed the case in 2018, saying Google and YouTube were “private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website,” not federal agencies or companies that functioned as an official arm of the government.
An appeals court upheld the dismissal in February of this year, saying PragerU’s censorship claim “faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government — not a private party — from abridging speech.”
Tulsi Gabbard v. Google
At least one major Democratic politician has filed an anti-bias suit as well. Presidential candidate Tulsi Gabbard sued Google in 2019 after the company briefly suspended her ad account, alleging the company was trying to undercut her bid for the party’s nomination.
This suit got a blisteringly snarky dismissal in March. California district Judge Stephen Wilson noted that “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government.” He cited the case against PragerU as legal precedent, concluding again that private web platforms aren’t held to the same standards as governments.
Robert Wilson v. Twitter
In one very recent case, Twitter user Robert Wilson claimed he was banned for “freedom of speech and or heterosexual expressions” and sued for civil rights and First Amendment violations. As expected, this didn’t fly. A West Virginia court ruled against this argument just a few weeks ago, saying Twitter was clearly a private forum. “That private social media companies now host platforms which imitate the functions of public forums — in many respects more effectively than the traditional public forums of government-owned sidewalks, streets, and public parks — does not mean that the entities are state-actors,” read the ruling.
Laura Loomer v. Google, Facebook, Twitter, and Apple
Laura Loomer made one of the most complicated cases against Silicon Valley. She sued alongside conservative legal group Freedom Watch in 2018, claiming that four of the tech world’s biggest companies had violated antitrust law by conspiring to suppress conservative content on their platforms, as well as violated the First Amendment by acting as “quasi-state actors.”
The companies failed to get the suit thrown out immediately, with the DC Circuit Court of Appeals saying the claims weren’t clear enough to dismiss out of hand. But today, the actual ruling was squarely against Loomer. “The Plaintiffs raise non-trivial concerns,” the court concluded. But they “failed to state viable legal claims” to support them — including evidence that a conspiracy existed or that private websites were public spaces that operated like a government.
…and many more.
People have been suing internet platforms for banning them since long before Trump took office; back in 2009, for instance, a PlayStation Network user sued on the grounds that Sony had created a “company town.” (The user lost.) Courts have overwhelmingly concluded that social media networks can ban, limit, or otherwise suppress users’ posts.
Conversely, government figures like Trump actually face strict rules about blocking users. Last year, a court required Trump to unblock Twitter accounts that had criticized him, determining that his Twitter account specifically — not the site as a whole — constituted a public space protected by the First Amendment. Other public officials have lost similar lawsuits from constituents.
Why do these suits keep getting filed? Some look like publicity stunts: activists and politicians can raise their profile by going after a big company like Google or Twitter, even if they’re unlikely to win. Some low-profile cases come from private citizens who seem genuinely confused about the law — a situation exacerbated by politicians pushing misinformation about sites’ legal risks. And other people look for novel arguments that might get past a judge, hitting companies with a scattershot barrage of claims.
But if Trump wants Twitter legally barred from labeling his tweets or banning his supporters’ accounts — which is what his tweets imply — he’ll be changing a widely acknowledged legal standard.
Trump wants to fight Twitter more than regulate it
For years, Donald Trump’s fight against social media companies has been a one-man boxing match. He calls them out over bias, and they rewrite policies making him the one exception to their rules, taking care never to punch back. But on Tuesday, Twitter slapped back for the first time ever, labeling two tweets as making false and misleading claims about mail-in voting.
On Wednesday morning, predictably, Trump hit back. In a series of early morning tweets, the president said he would “strongly regulate, or close [platforms] down” before he allowed them to stifle conservative speech. Trump did not explain the ways in which the federal government could regulate or shutter social media companies in his Wednesday morning tweets, but the fresh threats are lighting a fire under the feet of conservatives who believe, unjustly, that social media companies silence conservative voices and views. Soon after his first set of tweets Wednesday, Trump said to expect a “Big action to follow.”
Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that….
— Donald J. Trump (@realDonaldTrump) May 27, 2020
It’s not the first time the president has called out platforms for perceived bias against conservatives, and it certainly won’t be the last. But all of Trump’s past attempts to regulate social media platforms for ideological bias have fallen short, even as the scandals provoking them continue to escalate. The efforts have provided the Trump reelection campaign with a convenient foil in the Silicon Valley liberals and “elites” that supposedly control moderation systems. But the president has never followed through on his threats and used his considerable powers to place legal limits on how these companies operate. His fights with the tech companies last just long enough to generate headlines, but flame out before they can make a meaningful policy impact. And despite the wave of conservative anger currently raining down on Twitter, there’s no reason to think this one will be any different.
Those flameouts are most tangible in the courts. On the same day as Trump’s tweets, the US Court of Appeals in Washington ruled against the nonprofit group Freedom Watch and fringe right figure Laura Loomer in a case purporting that Facebook, Google, and Twitter conspired to suppress conservative content online, according to Bloomberg. Whether it be Loomer or Rep. Tulsi Gabbard (D-HI) fighting the bias battle, the courts have yet to rule in their favor.
Trump’s own attempts to use his executive power to regulate social media platforms have also fallen short. Last fall, the Trump administration reportedly drafted an executive order titled “Protecting Americans from Online Censorship” that would empower the Federal Communications Commission with the ability to change how Section 230 of the Communications Decency Act is interpreted. Right now, that law ensures that platforms can’t be sued over content posted by their users, provided they make a good faith effort to remove posts that violate the law. FCC Chairman Ajit Pai has previously made remarks that social media companies have too much power over online speech, but agency officials argued that the administration’s order was unconstitutional. The draft order went nowhere.
Still, Republicans jumped at Trump’s comments over social media bias to push legislation that would amend Section 230 of the Communications Decency Act. Soon after Trump attacked Twitter on Tuesday, Sens. Marco Rubio (R-FL) and Josh Hawley (R-MO) reinvoked the debate to change the law.
“The law still protects social media companies like Twitter because they are considered forums not publishers,” Rubio tweeted Tuesday.
“Twitter is getting subsidized by the federal government for that interference [labeling Trump’s tweets] in the form of special immunity worth billions,” Hawley said. “Time to end #BigTech sweetheart deal w/ government.”
Hawley has championed the conservative fight against Big Tech by introducing legislation to pare back Section 230, a fight that has gained him many fans on the anti-corporate left. Last year, he introduced a measure that would revoke 230’s legal shield if a platform is proven by the Federal Trade Commission to act out of favor against conservative political views. But the bill never received a hearing, and most of his other efforts have failed to pick up broad support, even among Republicans. Even if his own party backed the proposal, it seems unlikely to get through the Democrat-led House of Representatives during campaign season. Hawley also sent a letter directly to Twitter CEO Jack Dorsey Wednesday questioning the platform’s ability to fact-check Trump after “choosing. to editorialize on President Trump’s tweets.”
Even if the Trump administration and Congress can’t address their bias concerns through policy and legislation, they’ll likely continue to leverage the scandals through campaign advertising and fundraising. Earlier Wednesday, Trump’s reelection campaign released a new ad “to FIGHT BACK against” the mainstream media and “their biased coverage” of the Trump administration. Replace CNN and MSNBC with Facebook and Twitter, and the Trump campaign has a set of brand-new liberal villains treating the president unfairly. The campaign has even gone out of its way to scapegoat Yoel Roth, Twitter’s head of site integrity, over a string of old tweets. That sort of attack is as damaging to Twitter as it is profitable for Trump — but if you’re imagining this path will end in a new age of tech antitrust… you shouldn’t hold your breath.
YouTube fixes error that deleted comments critical of the Chinese Communist Party
YouTube says it’s begun fixing an error in its moderation system that caused comments containing certain Chinese-language phrases critical of China’s Communist Party (CCP) to be automatically deleted.
The issue meant that comments containing the phrases “共匪” (“communist bandit”) and “五毛” (“50-cent party”) were removed from the site in a matter of seconds. The former phrase is an insult dating back to China’s Nationalist government, while the latter is derogatory slang for internet users paid to defend the CCP from criticism online. It originates from the claim that these users are paid 50 Chinese cents per post.
YouTube told The Verge that the issue that caused comments containing these phrases to be deleted had been fixed for a number of these terms, but that it was still investigating the deeper causes of the error — suggesting other terms may still be affected. In The Verge’s tests, comments containing the two phrases above are no longer deleted from the platform.
The deletions were flagged by users as early as October last year, but YouTube only offered an official response to the problem after it was reported on yesterday by The Verge.
Although the company has blamed the deletions on an error in its “enforcement systems,” it has not explained how this error came to be. A spokesperson told The Verge only that the deletions were not the result of any change to YouTube’s moderation policy, and that the company has been relying on its automated systems more than ever recently as a result of the coronavirus pandemic, implying that the automatic deletions are connected.
However, an increasing reliance on automatic comment filters wouldn’t explain why comments containing these phrases were being deleted six months ago, long before the pandemic began. The deletions also seem particularly strange given YouTube is banned in China, giving the company no incentive to censor anti-CCP comments.
One hypothesis is that the terms in question were added to YouTube’s automated filters as a result of coordinated action by pro-CCP users, who may have mass-reported these terms, triggering some sort of automated response that added them to the platform’s filters.
There have been similar examples of mysterious errors with a pro-CCP bias appearing in Google’s automated systems before. Last year during the Hong Kong protests, Google Translate briefly translated the English phrase “So sad to see Hong Kong become China” into simplified Chinese that read (in English) as “So happy to see Hong Kong become China.” Google quietly fixed the issue without offering any details on the cause.
Without official explanation, politicians in the US including President Donald Trump have leapt on the story and used it to accuse YouTube’s parent company Google of a pro-China bias. For months, now, the White House has pushed a message that US tech companies censor conservative voices and are biased against Republican policies.
Google itself has a long and complicated history with China, with the company showing it’s happy, at times, to censor information in a way that complies with the wishes of the CCP. Most notably, the company developed a censored prototype search engine known as Project Dragonfly for the Chinese market. It was never launched and Google told a Senate Judiciary Committee hearing last year that it had terminated the project.
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